Despite a few false starts, it quickly became clear at Monday’s oral argument in Elgin v. Department of the Treasury that the more interesting puzzle in the case is not whether the Merit Systems Protection Board (MSPB) is precluded from adjudicating claims that a particular statutory bar to continuing federal employment is unconstitutional, but why, since that conclusion appears to leave the Justices with two equally unappealing alternatives in cases like this one. One of those alternatives, supported by Boston employment lawyer Harvey Schwartz on behalf of the petitioners, would have former government employees divide even constitutional claims between “as applied” challenges, which the MSPB can hear, and “facial” challenges – which, Schwartz argued, should proceed in the district courts in the first instance. The other alternative, advanced by Assistant to the Solicitor General Eric Feigin on behalf of the United States, would produce what Justice Scalia described as an “absolutely weird” theory of administrative review in which the MSPB, despite lacking jurisdiction over a facial constitutional challenge to a statutory employment bar, is nevertheless responsible for fact-finding, with plenary “appellate” review by the Federal Circuit.

Perhaps because of this apparent conundrum, only two points seemed clear by the end of the hour-long argument: The Justices agreed with both Schwartz and Feigin that, at least based on extant law, the MSPB cannot reach the petitioners’ challenge to the constitutionality of 5 U.S.C. § 3328, which bars from government employment anyone who, despite being required to register for the Selective Service, knowingly and willfully declined to do so. And the Justices also appeared to agree that the two unappealing alternatives may largely be a mess of their own creation, since the obstacle to the MSPB’s authority is the product of a body of case law, rather than the text of the Civil Service Reform Act. The real question going forward is whether the Justices are prepared to revisit that jurisprudence in the name of efficiency, or will instead preserve the status quo – in which practical difficulties will necessarily color a decision for either party.

The problem became apparent early in Schwartz’s argument for the petitioners, as he attempted to articulate the distinction between the MSPB’s authority over “facial” and “as applied” challenges. At least initially, that tack did not seem to go over well, with one Justice after another flagging the practical difficulties that such a distinction would create, especially in cases with “mixed” claims. But Schwartz held his ground, suggesting that the real headache would occur if litigants had to bring claims to the MSPB that the MSPB could not hear, relying on the Federal Circuit’s appellate jurisdiction as a necessary stop-gap. In a particularly telling colloquy with Justices Breyer and Ginsburg, Schwartz explained that such a system would “present[] immense practical problem[s]” by converting the Federal Circuit into a court of first impression, hardly what Congress could have intended when it enacted the Civil Service Reform Act (CSRA). And although Justice Breyer seemed skeptical, Schwartz, with some prodding from Justice Ginsburg, suggested that the need for factual development in this case itself helped to prove the point.

That the government’s position suffers from its own practical problems became crystal clear early in Feigin’s argument, as well. Picking up on Judge Boudin’s logic for the First Circuit majority in Elgin, Feigin suggested that any defect in the MSPB’s authority could be remedied by the Federal Circuit on appeal, since no one would question that court’s authority to decide the petitioners’ constitutional claims. As for the Federal Circuit thereby having to serve as a court of first impression, Feigin suggested that any factual disputes could be remanded to the MSPB for fact-finding – a proposition Justice Scalia dismissed as “absolutely weird,” and later as “ridiculous,” since it would leave the MSPB in the position of having to take evidence on “on an issue that it has no jurisdiction to decide.” Indeed, as Justice Alito pointed out shortly thereafter, such an approach would require the MSPB to manage discovery without having any ability to reach the underlying legal issue for which such discovery was needed. In summarizing the weird gymnastics such administrative review would require, Justice Breyer pointedly suggested to Feigin that “your argument is that [the petitioners’] position’s worse. Yours is also fairly bad.”

As Feigin’s argument went on, the Justices’ attention turned increasingly toward why the MSPB lacks the authority to decide facial constitutional challenges. As Justice Breyer pointed out, the CSRA does not expressly prevent the MSPB from reviewing the constitutionality of statutory employment bars; rather, the obstacle comes from what Feigin described as “a general presumption about the authority of administrative agencies” that is long reflected – and well accepted – in the Supreme Court’s jurisprudence. And although Feigin suggested that Congress might fix the problem by expressly granting such authority to the MSPB, Justice Kagan questioned whether that would be sound policy, given the MSPB’s relative expertise (or lack thereof) in assessing the constitutionality of statutes like Section 3328.

Based on the argument alone, the most likely result in Elgin seems to be a narrow holding that the CSRA does not preclude original actions in the district court on constitutional claims that the MSPB cannot itself resolve. But even if Elgin ends up as a poor vehicle for revisiting the power of administrative agencies to decide facial challenges to federal statutes, Monday’s argument suggests that the Justices may well be inclined to do so, sooner rather than later.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.